Humanitarian intervention and political support for interstate use of force: report of the Expert Group established by the Minister of Foreign Affairs of the Netherlands (page 79-112)

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Report of the Expert Group

Established by the Minister of Foreign Affairs

of the Netherlands

December 2019

Humanitarian Intervention

and Political Support for

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Expert Group on

Political Support for Interstate Use of Force

and on Humanitarian Intervention

Chair

Prof. Dr. Cyrille Fijnaut

Members of the Expert Group

Mr. Kristian Fischer Prof. Dr. Terry Gill

Prof. Dr. Larissa van den Herik Prof. Dr. Martti Koskenniemi

Prof. Dr. Claus Kreß Mr. Robert Serry

Ms. Monika Sie Dhian Ho Ms. Elizabeth Wilmshurst Prof. Dr. Rob de Wijk

Secretariat

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Preface

The Minister of Foreign Affairs of the Netherlands, Stef Blok, by his Order of 25 April 2019, established an Expert Group on Political Support for Interstate Use of Force and on Humanitarian Intervention. The Expert Group was tasked with giving its opinion(s) on (a) the government’s expression of political support for the use of force between states without a basis in international law; and (b) whether the Dutch government should promote the international acceptance of humanitarian intervention as a possible new legal basis for the interstate use of force.

In the explanatory notes to the Order, the government states that the Expert Group is to produce an advisory report in an expeditious manner without, however, sacrificing quality and depth. The Expert Group started its work on 1 June 2019 and concluded its deliberations on 19 November 2019. Its composition is included in Annex A. The fact that the Expert Group was able to meet the government’s timetable was not only the result of its working methods, which will be explained in the introduction of the report, but also of a number of other factors that we would like to highlight. First of all, it has to be emphasized that the logistical preparations carried out by the Ministry of Foreign Affairs, in particular by Erik van Uum and Kevin Brongers, and subsequently by Sladjana Cemerikic and Wibe van der Linden, greatly facilitated the work of the Expert Group and its secretariat.

Secondly, we want to express our gratitude to Prof. Dr. Erwin Muller, Dean of the Faculty of Governance and Global Affairs, and to Henriët Reininga from Leiden University’s Buildings & Facilities Service. Their willingness to house the secretariat of the Expert Group at the premises of Leiden University’s Campus The Hague made the organization of our internal meetings and research activities considerably easier. Thirdly, we would like to acknowledge the efforts of Steve Lambley, copyeditor, and Raymond Swart, graphic designer, who made it possible to produce this report in a short period of time.

The Hague, 19 November 2019

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Executive summary

By Order of 25 April 2019, the Minister of Foreign Affairs, Stef Blok, established the present Expert Group, requesting it to offer its views on the following two questions: on the one hand, lending of political support by the Dutch government to the interstate use of force by other states without a basis in international law; on the other, whether the Netherlands should strive for international acceptance of humanitarian intervention as a possible new legal basis for the use of force between states in exceptional circumstances.

Following the chair’s work plan, which included background research by the secre-tariat, position papers by the members and a meeting in The Hague on 6–8 October 2019, the Expert Group finalized its report in an expedient manner.

The report recalls the background of the current Dutch position on the matters raised in the questions addressed to the Expert Group and the international context into which the issues at stake have to be situated (see chapter 2). This includes the international legal framework, geopolitical developments, ongoing reform efforts and proposals and the difficulty of defining success when it comes to interstate use of force and humanitarian intervention.

In answer to the question regarding whether the Dutch government should promote the international acceptance of humanitarian intervention as a possible new legal basis for interstate use of force (see chapter 3), the Expert Group considers that existing international law concerning the use of force by states contains only two firmly accepted exceptions to the general prohibition to use force under Article 2, paragraph 4 of the Charter of the United Nations. These are the use of force under the authority of the United National Security Council (Articles 39–42 of the UN Charter) and use of force in self-defence (Article 51 of the UN Charter). However, a minority is of the view that in light of the practice of states it is no longer possible to conclude that forcible action to defend a civilian population in case of a most serious attack is manifestly unlawful if undertaken as a last resort and under strict conditions.

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A minority is of the view that such informal consultations could include an effort to explore whether and how conditions could be formulated under which forcible action in defence of a civilian population under a most serious attack, if undertaken under strict conditions, might not be unlawful even in the absence of authorization by the United Nations Security Council. Those conditions might include the likeli-hood that forcible action will be successful in avoiding or at least strictly limiting civilian casualties.

In answer to the question regarding the government’s expression of political sup-port for the use of force between states without a basis in international law (see chapter 4), the Expert Group stresses that there is a clear distinction between, on the one hand, offering support, such as troops, arms or logistics, which would trigger state responsibility for the commission of unlawful acts, and, on the other, offering political support in a political forum, which would not. In addition, mere political support by government officials after the commission of an unlawful act by another government does not lead to those officials incurring individual criminal responsibility under the Rome Statute of the International Criminal Court. Nevertheless, even though a state offering political support does not incur respon-sibility under international law, the Expert Group is of the view that there are strong legal and political reasons for exercising caution before supporting a military operation which the Netherlands regards as unlawful. Ignoring the applicability of the law by supporting unlawful actions risks the erosion of the international legal order and may encourage future unlawful behaviour.

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1. Introduction

1. On 25 April 2019, the Minister of Foreign Affairs, Stef Blok, established the present Expert Group, which was requested to offer its views on the following two questions:

– the lending of political support by the Dutch government to the interstate use of force by other states without a basis in international law;

– whether the Netherlands should strive for international acceptance of humanitarian intervention as a possible new legal basis for the use of force between states in exceptional circumstances.

2. In an earlier letter of 10 December 2018 to the Dutch House of Representatives explaining the background for establishing the Expert Group, the Minister referred to the Dutch position in relation to the response of the United States, the United Kingdom and France to the poison gas attack on Douma, Syria. The Netherlands expressed its “understanding” (begrip) for this response and judged it to be “proportional and well-considered”, as the Netherlands believes that it is vital that the international community vigorously upholds the norm of international law that chemical weapons must never be used. The Minister explained in the letter that the Dutch government had difficulties with the state-ment as adopted by the North Atlantic Council (NAC) expressing “full support” (volledige steun) for the actions of the named countries. In the explanation of its vote within the NAC, the Netherlands stated that, despite its concerns, it voted in favour of the NAC’s statement on the grounds of North Atlantic Treaty Organization (NATO) solidarity. The Netherlands was the only NATO member state to issue such an explanation of its vote.

3. The Dutch position on this matter was informed by the lessons learnt from the Dutch Iraq Inquiry under the chairmanship of Willibrord Davids (the Davids Committee). The Davids Committee held in 2010 that there had not been an adequate legal basis for the invasion of Iraq. In response to the findings of the Davids Committee, the Dutch government explicitly confirmed that the requirement of an adequate legal basis also applies to situations in which the Netherlands offers political support to other states undertaking military action. It seems that the government now wishes to revisit this confirmation, leading to the first question on which advice has been sought.

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that the answer to it also informs the answer to the first question, the Expert Group decided to reverse the original order of questions.

5. Article 7 of the Order by which the Expert Group was established states that the chair is to determine the working methods of the Expert Group and will provide an account thereof in the final report. In the explanatory notes of the Order, it is added that the chair is to gather the views and opinions of the members of the Expert Group and synthetize them in a report. This is also why, unlike other advisory committees, the Expert Group would only meet once. Moreover, according to the explanatory notes, the opinions and insights gathered by the chair are first to be presented to the members for comment, before being incorporated into the final report.

6. In conformity with these provisions, the chair outlined the following working methods to the members of the Expert Group in his letter of 7 June 2019:

– the members were asked to identify by 15 July 2019 the most relevant pieces of literature in order to build a common body of knowledge for reference; these pieces would be included in a reader that in its turn would be sent to the members by the end of July;

– in parallel with the composition of the syllabus, the chair and the secretary would prepare a bibliography that covers the most relevant books, reports, articles and contributions that have been published in recent years;

– in order to further the preparatory work of the members, the chair and secretary would write and share background notes, respectively on the background and context of the Dutch position concerning the 14 April 2018 military response to the attack on Douma, Syria of 7 April 2018, in which chemical weapons were used, and on the legal framework and the contem-porary academic debate regarding interstate use of force and humanitarian intervention;

– with a view to the collection of the views and opinions of the members of the Expert Group, members were asked to prepare a position paper on the issues at stake before 31 August 2019;

– these views and opinions would be synthetized in mid-September 2019 in a working document and collated in a syllabus, both of which would be transmitted to the members of the Expert Group;

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1. Introduction 3

By virtue of a total of five successive updates, the chair has ensured that the proposed way of working was implemented in an expedient and timely manner. 7. The discussion of the Expert Group in The Hague resulted in the final report in two stages. At the meeting in The Hague, the Expert Group could come to an agreement on the answers to the two questions. These are included in chapters 3 and 4 of this report. At the same time, it could agree upon a division of tasks among the members in relation to the text of chapter 2. The proposals made by the members for the text of this chapter were integrated by the chair into the draft of this chapter. The draft report was sent to the members on 29 October 2019. After their comments were integrated, the final report was transmitted to the copyeditor on 19 November 2019.

8. In relation to the way in which the Expert Group has executed its mandate, it is important to recall that according to Article 3, paragraph 2 of the Order establishing the Expert Group, the chair, the members and the secretariat participate in their personal capacity and discharge their duties independently and without instructions or consultation. Moreover, the Minister of Foreign Affairs wrote in his letter of 23 May 2019 to the members that “the report does not have to be univocal or conclusive”. These basic parameters of the Expert Group’s work ensured that its deliberations took place in an open-minded and constructive environment. This, in turn, allowed the completion of the report within a limited timeframe in a way that draws on the members’ multinational and multidisciplinary backgrounds as well as their different professional experiences.

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2. The Dutch position in its

international context

10. The Dutch position on the matters of political support for interstate use of force and humanitarian intervention needs to be seen in its international context, both legal and political. Hence, before turning to its findings, the report first outlines the international legal framework relating to the use of armed force, the geopolitical context, relevant ongoing reform efforts and proposals, and addresses the difficulty of defining success in cases of interstate use of force and humanitarian intervention.

International legal framework

11. The cornerstone of the current international legal order is the prohibition of the threat or use of force contained in Article 2, paragraph 4 of the UN Charter. This provision lays down a comprehensive ban on the threat or use of armed force between states or across an international border for any purpose other than the exceptions contained in the UN Charter itself. In brief, it bans the use of armed force except when authorized by the UN Security Council or when necessary in self-defence. States may use force in self-defence, both individually (by one state in response to an armed attack originating from outside its borders) and collectively (by more than one state in response to an armed attack against one or more of them). The use of force in self-defence falls outside the purview of this advice and will receive no further attention here.

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13. A breach by a state of the prohibition of the threat or use of force in Article 2, paragraph 4 of the UN Charter entails the international responsibility of that state. Such responsibility may lead to the state being held liable for reparations to the injured state.

14. A serious breach of the prohibition of the use of force under Article 2, paragraph 4 of the UN Charter may amount to aggression. Aggression involves a breach of a so-called peremptory norm of international law (ius cogens). Article 53 of the Vienna Convention of the Law of Treaties defines a peremptory norm as “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. Treaties that conflict with ius cogens norms are void (Articles 53 and 64 of the Vienna Convention of the Law of Treaties). Breach of a peremptory norm triggers the duty of all states to bring the breach to an end. It is contrary at least to the spirit of that duty to voice political support for such a breach.

15. State officials in leadership, who take part in the planning, preparation, initiation or execution of a serious breach of the prohibition of the use of force by their state, can be criminally liable for a crime of aggression under international criminal law, as defined in Article 8bis of the Rome Statute of the International Criminal Court. Under certain circumstances, these officials may be prosecuted by the International Criminal Court.

Geopolitical context

16. Due to geopolitical shifts, reaching consensus on UN Security Council Resolu-tions will likely be more difficult. Since 2010, the United States has exercised its veto power three times, the Russian Federation eighteen times, of which eight times were together with China. France and the United Kingdom have not used their veto in the Security Council since 1989.

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2. The Dutch Position in its International Context 7

18. China is willing to support UN Security Council mandates for traditional peacekeeping operations. Those mandates should reflect three inter-related and mutually reinforcing principles: consent of the parties; impartiality of the peacekeepers; and the non-use of force except in cases of self-defence and defence of the mandate. China is likely to reject unmandated interventions for humanitarian purposes. Only in very rare circumstances could China be willing to support Western military action other than peacekeeping. The best the Western members of the Security Council can usually hope for are abstentions. 19. As a result of the changing geopolitical environment, Russia and possibly other

powers will be less constrained in their foreign policies. As Russia’s official posi-tion on non-interference is quite similar to that of China, the Kremlin is likely to block Western proposals for mandated interventions as well, as evidenced most notably by the use of its veto powers in the context of the conflict in Syria. 20. Anti-Western sentiments and mistrust, which are rooted in perceived double standards, colonialism, imperialism and interventionism, are an obstacle for obtaining mandates as well. The intervention in Libya is a case in point. In 2010 and 2011, NATO member states decided to stop the Libyan leader Colonel Gaddafi terrorizing his people. The resulting intervention was supported by UN Security Council Resolution 1973 (2011), but Russia and China, among others, protested that the use of force amounted to regime change in excess of the mandate. When those states blocked subsequent mandates for intervention, they also referred to the Libyan experience. The Libya case thus added to the mistrust caused by the first “humanitarian war”, i.e. the 1999 NATO Kosovo war that took place without UN Security Council authorization.

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Reform efforts and initiatives at UN level

22. The Expert Group recalls that the questions about political support for interstate use of force and humanitarian intervention also need to be seen in the light of ongoing discussions and reform initiatives in multilateral frameworks. Rather than the unavailability of a legal basis in international law, the failure to prevent and inaction of the Security Council in the face of mass atrocities should be seen as the primary sources of concern.

23. Efforts in this domain include the implementation of the Responsibility to Protect (R2P) principles, making better use of inter-institutional dynamics at the United Nations and proposals for strengthening the transparency and effectiveness of the Security Council in its responses to mass atrocities. The Expert Group submits that these different initiatives, and their interaction, have the potential to contribute to preventing and effectively responding to international crises and mass atrocities within the existing framework of international law.

24. The Expert Group recalls that the 2005 World Summit Outcome document officially affirmed the principles of R2P as a duty to use diplomatic, humanitar-ian and other peaceful means to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This can entail collective action, through the Security Council and in accordance with Chapter VII of the United Nations Charter, where peaceful means are inadequate and national authorities are manifestly failing to protect their populations. The R2P principles have been referred to on numerous occasions by the Security Council, the General Assembly and the Human Rights Council ever since. The UN Secretary-General, in subsequent reports on R2P, has stressed the particular importance of prevention in this context. The more effective prevention and early warning mechanisms become, the less need there will be for interstate use of force to address humanitarian crises.

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2. The Dutch Position in its International Context 9

26. In addition, with a view to improving the effectiveness and transparency of the way the Security Council operates, different proposals have been put forward by states. These include the Accountability, Coherence and Transparency (ACT) group, which calls for the adoption of a voluntary code of conduct to restrain the use of veto powers, and the French-Mexican political declaration asking the permanent members of the Security Council to pledge to refrain from using the veto in case of recognized mass atrocities.

The definition of success

27. A reasonable expectation of success should be taken into account when sup-porting military action politically. In practice, this key requirement is often underestimated. Although a decision “to do something” could be morally right initially, failure could result in grave political consequences.

28. Success can be measured in relation to the declared objectives of the intervener, such as the relief of humanitarian suffering or preventing the use of unlawful weapons. Declared political objectives are a prerequisite for defining the military means needed. Indeed, the old Clausewitzian dictum of the need to balance military means against political objectives explains why interventions and military operations are successes or failures. Moreover, it should be taken into account in this context that decisions regarding military intervention involve difficult dilemmas and often need to be taken within a limited timeframe to consider these dilemmas and, therefore, on the basis of limited information. 29. On the one hand, interventions such as those in Sierra Leone (2000) and Côte

d’Ivoire (2002) were to a large degree successful. On the other hand, the inter-ventions in Afghanistan (2001), Iraq (2003) and Libya (2011) resulted in regime changes, but the subsequent stabilization operations dragged on for years or were not carried out at all (Libya). The narrow political objective of regime change required a limited number of forces for a short period of time, but the subse-quent stabilization mission required very large numbers of forces that could not be sustained for a prolonged period of time.

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responses of determined leaders concerning corruption, discrimination, eco-nomic failure, mal-administration, repression and poor ecoeco-nomic conditions. 31. Complex contingencies very rarely involve regular armies on both sides. As can be seen from the annual yearbooks published by the Stockholm International Peace Research Institute (SIPRI), in those circumstances, low-intensity war will replace high-intensity interstate warfare almost completely, because opponents are likely to fight only asymmetrical wars. Due to Western superiority in combat power, adversaries have no other choice but to use the “great equalizer” to thwart the West’s superiority: unconventional and asymmetrical strategies of counter-coercion, as a result of which the distinction between combatants and non-combatants becomes blurred. If this is done in a smart way, the West’s military might scarcely matters. Consequently, the intervention may fail. 32. In sum, “doing something” or engaging in a military operation might lead to

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3. Findings on the question of

humanitarian intervention

33. This section sets out the findings of the Expert Group regarding the question as to whether the Netherlands should strive for international acceptance of humanitarian intervention as a possible new legal basis for the use of force between states in exceptional circumstances.

34. The Expert Group considers that existing international law concerning the use of force by states contains only two firmly accepted exceptions to the general prohibition to use force under Article 2, paragraph 4 of the UN Charter. These are the use of force under the authority of the United Nations Security Council (Articles 39–42) and use of force in self-defence (Article 51). However, a minor-ity is of the view that in light of the practice of states it is no longer possible to conclude that forcible action to defend a civilian population in case of a most serious attack is manifestly unlawful if undertaken as a last resort and under strict conditions.

35. The great majority is of the view that it does not seem advisable at present for the Dutch government to seek another exception with the view of allowing the use of force by states for ostensibly humanitarian purposes. It does not seem possible or desirable to seek such exception for the following reasons:

– the general prohibition to use force in international relations is a norm of fundamental importance for the international community;

– it would not be likely to receive the broad support of the international community in the foreseeable future;

– experience shows that military interventions can also create negative consequences that cannot be foreseen as they are planned; and

– even limited exceptions are likely to be used for purposes not originally envisaged by those who adopt them.

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37. A minority is of the view that such informal consultations could include an effort to explore whether and how conditions could be formulated under which forcible action in defence of a civilian population under the most serious attack, if undertaken under strict conditions, might not be unlawful even in the absence of a United Nations Security Council authorization. Those conditions might include the likelihood that forcible action will be successful in avoiding or at least strictly limiting civilian casualties.

38. The Dutch government could also pursue all avenues for developing existing mechanisms for dealing with humanitarian emergencies, such as strengthening the decision-making capacities of the Security Council, including on the basis of existing initiatives for codes of conduct on Security Council voting in the face of mass atrocities.

39. The government is also recommended to engage with members of the United Nations Security Council and other members of the United Nations to encour-age the use of Responsibility to Protect (R2P) principles.

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4. Findings on the question of political support

41. This section presents the Expert Group’s findings regarding the question as to whether the Dutch government should lend political support for the interstate use of force by other states for which there is no basis in international law. This question does not cover the issue of non-lethal assistance to non-state armed opposition groups. Nor does it concern direct participation in military operations or questions of self-defence.

42. Within the Expert Group the question was raised as to whether a state lending political support for the use of force without a legal basis could incur responsibil-ity under international law. In particular, the Articles on State Responsibilresponsibil-ity for Internationally Wrongful Acts – Article 16 on aid or assistance, or complicity, and Article 41, paragraph 2 containing the obligation not to recognize unlawful situations – might be relevant.

43. The Expert Group is of the clear view that merely providing political support subsequent to an unlawful action does not incur international legal respon-sibility for the supporting state. Article 16 concerns actual aid or assistance, as it requires that the support facilitated the commission of the wrongful act and significantly contributed to it. Article 41, paragraph 2, in turn, addresses a situation different from the offering of political support to an illegal act. As is clearly indicated by its wording, it is an obligation not to recognize the

unlawful situation arising from the breach. It thus concerns the consequences

of the breach rather than the breach itself.

44. There is consequently a clear distinction between, on the one hand, offering sup-port, such as troops, arms or logistics, which would trigger state responsibility for the commission of unlawful acts, and, on the other, offering political support in a political forum, which would not. In addition, mere political support by government officials after the commission of an unlawful act by another government does not lead to those officials incurring individual criminal responsibility under the Rome Statute of the International Criminal Court. 45. Nevertheless, even though a state offering political support does not incur

responsibility under international law, there are strong reasons for exercising caution before supporting a military operation which the Netherlands regards as unlawful.

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– Following the Second World War, the universal acceptance by the inter-national community of the prohibition on the use of force represented a huge gain for an international rules-based society. Ignoring the applicability of the law by supporting unlawful actions risks the erosion of the international legal order.

– Political support for another state’s use of force, combined with a lack of expression of disagreement with its postulated legal basis, may be taken by the international community as meaning that the supporting government agrees with the legal basis for the action. This may make it more difficult in the future for that government to express disagreement with another state’s actions.

– Such support may also encourage future unlawful behaviour and contribute to a culture in which states intending to use force in similar circumstances in the future will believe themselves unlikely to meet a negative international response.

– The credibility of governments that normally assert the importance of international law would be strained if they regularly failed to respond in any way to the commission of illegal acts.

47. Secondly, there may be political consequences: the government must accept responsibility for repercussions that their political support will have on inter-national relations in the broad sense and on concrete relationships in particular. 48. Having taken these legal and political risks and consequences into account, the

government may nonetheless find that there are compelling reasons to offer political support to an intervention, even though they regard it as unlawful. The kind of circumstances that may be regarded as meriting such support may relate to extreme humanitarian distress, including the use of chemical weapons with direct danger for civilians.

49. Relevant considerations in deciding to offer political support in such extreme circumstances might include the relationship with allies, and the necessary and proportionate scope of the intervention, together with the absence of any alternative course of action, including as a result of the use of the veto in the Security Council. Also relevant are the need for clear objectives, a reasonable prospect of success for the intervention itself and the reasonably foreseeable consequences of that intervention.

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4. Findings on the Question of Political Support 15

recognized that decisions may have to be taken under pressure and with strong time constraints. Decisions will have to be taken on a case by case basis. 51. The government is not alone in wishing on occasion to offer political support

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ANNEX A

Composition of the Expert Group*

Chair

Prof. Dr. Cyrille Fijnaut , Erasmus University Rotterdam, KU Leuven and

Tilburg University

Members of the Expert Group

Mr. Kristian Fischer , Danish Institute for International Studies

Prof. Dr. Terry Gill , University of Amsterdam and Netherlands Defence

Academy

Prof. Dr. Larissa van den Herik , Leiden University Prof. Dr. Martti Koskenniemi , University of Helsinki Prof. Dr. Claus Kreß , University of Cologne

Mr. Robert Serry , Former Netherlands Ambassador and United Nations Special

Coordinator for the Middle East Peace Process

Ms. Monika Sie Dhian Ho , Netherlands Institute of International Relations

Clingendael

Ms. Elizabeth Wilmshurst , Chatham House

Prof. Dr. Rob de Wijk , Leiden University and The Hague Centre for Strategic

Studies

Secretariat

Dr. Joris Larik , Leiden University and the Stimson Center

Ms. Nienke van Heukelingen , Netherlands Institute of International Relations

Clingendael

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ANNEX B

Timeline of events

International Netherlands

Srebrenica massacre during the

Bosnian War 1995 Despite the presence of UNPROFOR’s Dutch battalion (Dutchbat), Srebrenica’s capture and subsequent massacre occurs Kosovo War 1999 The Netherlands takes part in

NATO Operation Allied Force The International Commission on

Intervention and State Sovereignty publishes its report on “The Responsibility to Protect”

2001

2002 NIOD report on the Srebrenica massacre leads to the resignation of the Kok II government

Invasion of Iraq 2003 The Netherlands politically and materially supports the invasion UN World Summit Outcome

document endorses R2P principles on the basis of UN Charter

2005

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International Netherlands

2010 The Davids Committee, established by the Balkenende IV government in 2009, publishes its report on the Dutch participation in the 2003 Iraq War, concluding, inter alia, that there had been no adequate basis in international law for the invasion

The Balkenende IV government resigns after it fails to agree on extending the Dutch participation in the NATO mission in Uruzgan (Afghanistan)

Military intervention in Libya based on United Nations Security Council Resolution 1973; NATO is widely considered to have exceeded the Security Council’s mandate by having contributed to regime change in Libya

2011 The Netherlands actively takes part in the intervention

Syrian Civil War 2011– US, UK and France conduct air

strikes against chemical weapons facilities of the Assad regime in response to the chemical weapons attack on Douma in April 2018

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ANNEX C

Extracts from key UN documents

UN Charter

Article 2, paragraph 4

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Article 11

1. The General Assembly may consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both.

2. The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion. 3. The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security. 4. The powers of the General Assembly set forth in this Article shall not limit the general scope of Article 10.

Article 12

1. While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.

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Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters.

Article 24

In order to ensure prompt and effective action by the United Nations, its Mem-bers confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.

The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration.

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Article 51

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Annex C. Extracts from Key UN Documents 23

Article 99

The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.

2005 UN World Summit Outcome (A/RES/60/1)

Use of force under the Charter of the United Nations

77. We reiterate the obligation of all Member States to refrain in their inter-national relations from the threat or use of force in any manner inconsistent with the Charter. We reaffirm that the purposes and principles guiding the United Nations are, inter alia, to maintain international peace and security, to develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples and to take other appropriate measures to strengthen universal peace, and to that end we are determined to take effective collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, in conformity with the principles of justice and international law, the adjustment or settlement of international disputes or situations that might lead to a breach of the peace.

78. We reiterate the importance of promoting and strengthening the multilateral process and of addressing international challenges and problems by strictly abiding by the Charter and the principles of international law, and further stress our commitment to multilateralism.

79. We reaffirm that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security. We further reaffirm the authority of the Security Council to mandate coercive action to maintain and restore international peace and security. We stress the importance of acting in accordance with the purposes and principles of the Charter. 80. We also reaffirm that the Security Council has primary responsibility in the maintenance of international peace and security. We also note the role of the General Assembly relating to the maintenance of international peace and security in accordance with the relevant provisions of the Charter.

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Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity

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responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropri-ate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue considera-tion of the responsibility to protect populaconsidera-tions from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

Implementing the responsibility to protect: accountability for

prevention, Report of the Secretary-General, 10 August 2017

(A/71/1016–S/2017/556) [internal footnotes omitted]

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Annex C. Extracts from Key UN Documents 25

to protect and has reaffirmed the principle at least six times. It has reminded Governments of their primary responsibility to protect, urged national authori-ties to ensure accountability for violations of international human rights and humanitarian law, and has twice mandated peace operations to support host Governments to fulfil their responsibility to protect. In 2009, the General As-sembly reaffirmed its intention to continue consideration of the concept (see resolution 63/308). More than 100 Member States have actively contributed to the ongoing consideration by the General Assembly of the responsibility to protect during eight informal and interactive dialogues since 2009. They have used those opportunities to clarify the principle, reaffirm their commitment to it, share experiences and lessons learned, and outline the steps needed to make the responsibility to protect a reality everywhere. The Human Rights Council has adopted more than 20 resolutions that refer to the responsibility to protect. In 2016, it called upon all Member States to work to prevent potential situations that could result in atrocity crimes and, where relevant, to address the legacy of past atrocities to prevent recurrence (see resolution 33/19).

…

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Responsibility to protect: from early warning to early

action, Report of the Secretary-General, 1 June 2018

(A/72/884–S/2018/525)

28. In paragraph 139 of the 2005 World Summit Outcome, the Security Coun-cil’s special responsibility for the prevention of atrocity crimes was affirmed. In the past, the Council sometimes responded to situations only after atrocity crimes had been committed. It has, however, taken initiatives that contribute to early action. For example, it has increasingly invited and received briefings from my Special Adviser on the Prevention of Genocide. Initiatives such as Arria formula briefings, Council missions to conflict-affected countries, open thematic debates, situational awareness briefings and wrap-up sessions should all strengthen the Council’s effectiveness in prevention efforts. The Council could consider how existing measures could be employed to prevent atrocity crimes. When risks of atrocity crimes are identified, the Council could utilize instruments at its disposal to better ascertain the situation and guide its decision-making.

…

31. The Security Council, the General Assembly and the Human Rights Council should consider ways to better utilize the tools at their disposal to strengthen international accountability for atrocity crimes.

32. States have put forward proposals for strengthening the effectiveness and transparency of the working methods of the Security Council as it responds to the threat and commission of atrocity crimes, such as those proposed by the Accountability, Coherence and Transparency Group and the Governments of France and Mexico.

…

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27

ANNEX D

The Dutch position concerning the 14 April 2018

military response to the poison gas attack

on Douma, Syria, on 7 April 2018

Background note by Cyrille Fijnaut

I. Introduction: why this note? 28

II. The background to the Dutch position on 14 April 2018 30

II.1. In the shadow of the Srebrenica massacre 30

II.2. The impact of the war in Iraq 34

II.3. What to do in a case like Syria? 37

III. The Dutch position concerning the military response to the poison

gas attack on Douma 40

IV. The position of the United States, the United Kingdom, France,

Germany and Belgium 43

IV.1. The position of the United States 44

IV.2. The position of the United Kingdom 48

IV.3. The position of France 52

IV.4. The position of Germany 56

IV.5. The position of Belgium 57

V. The position of NATO and the EU 58

V.1. The position of NATO 58

V.2. The position of the EU 59

VI. The confrontation in the Security Council 61

VI.1. The vetoed (draft) resolutions of 10 April 2018 61

VI.2. 13 April: the warning by the Secretary-General 64

VI.3. The rejection of the Russian draft resolution on 14 April 2018 65 VI.4. The report of the OPCW Fact-Finding Mission on the incident in

Douma 68

VII. Some comments from the academic community 69

VIII. Concluding remarks 71

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I. INTRODUCTION: WHY THIS NOTE?

1. In the letter of 10 December 2018 to the President of the House of Representa-tives, the Minister of Foreign Affairs, Stef Blok, explained why he would create an expert group: on the one hand, to examine whether certain developments necessitate a new perspective on political support for the use of force between states by other countries (not the use of force by the Netherlands itself) and, on the other hand, to investigate whether the Netherlands should push for international acceptance of humanitarian intervention as a possible new legal basis for the use of force between states in exceptional circumstances. He repeated in this letter that on 14 April 2018 the Dutch government expressed its “understanding” (begrip) for the response of the United States, the United Kingdom and France to the poison gas attack on Douma, Syria, and judged their response to be “proportional and well-considered”, because the Netherlands believes that it is vital that the international community vigorously upholds the norm of international law that chemical weapons must never be used. The Minister equally repeated in a letter of 10 December that the Dutch government had difficulties with the statement as adopted by the North Atlantic Council (NAC) because it expressed “full support” (volledige steun) for the actions of the named countries, while the Netherlands did not go further than expressing “understanding” (begrip). In the explanation of its vote within the NAC it stated that, despite this reservation, it voted in favour of this “full support” statement on the grounds of North Atlantic Treaty Organization (NATO) solidarity. The Netherlands was the only NATO member state to issue such an explanation of its vote.

2. In addition to this historical reference, the Minister of Foreign Affairs stated in the letter of 10 December 2018 that it was conceivable that in the near future the Netherlands will again be confronted with such a situation “in which it is asked to express political support for the use of force between states, even when there is no basis for such action in international law, as currently required by the Netherlands”. In conjunction with this last observation he added that when we – in the Netherlands – speak of a “basis” in international law, we are referring to the applicability of one of the established exceptions to the fundamental principle of international law that the use of armed force is not permitted in international relations. And in relation to these exceptions the Minister not only refers to letters to Parliament in 2007 and 2013, but also to its response, in 2010, to the report of the Committee of Inquiry on Iraq (the Davids Committee) that the expression of political support for the use of force between states requires a basis in international law.

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Annex D. The Dutch Position on the Response to the Attack on Douma 29

and 2013 as well as the report of the Davids Committee and the reaction of the government to this report. Otherwise it is – for a non-Dutch audience – rather difficult to understand why it was so important for the Dutch government to distance itself to some extent from the statement that was made by the NAC and – referring to the first question – why it is looking for a new perspective on political support for the use of interstate force. In the second place it is important – given the fact that the reaction of the Dutch government in the framework of the NAC to some extent differed from the reactions of other member states of NATO – to go into detail with regard to the positions that, in parallel with the United States, some of the closest European allies of the Netherlands (the United Kingdom, Belgium, Germany and France) not only took in the framework of NATO but also in the framework of the European Union and the United Nations. An overview of their positions – in comparison with the Dutch position – could be useful for a suitable answer in particular to the second question the Expert Group has to answer, because it could generate ideas for pushing for international acceptance of humanitarian intervention as a possible new legal basis for the use of force between states in exceptional circumstances.

4. The foregoing more or less indicates the structure of this note:

– Section II sketches in broad lines the background of the position the Netherlands took on 14 April 2018 – its position itself is outlined in section III;

– Section IV contains an overview of the positions of its closest allies (the United States, the United Kingdom, France, Germany and Belgium) and section V specifies the positions of NATO as well as the European Union; – Section VI details the confrontation that took place in the Security Council

concerning the poison gas attack on Douma as well as the military response to this attack;

– Section VII presents some comments from the academic community which specifically relate to the military response on 14 April 2018;

– Section VIII contains some general concluding remarks.

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as possible to form his/her opinion about what has happened on 7 and 14 April 2018 and what has been said about it.

II. THE BACKGROUND TO THE DUTCH POSITION ON 14 APRIL 2018 II.1. In the shadow of the Srebrenica massacre

5. On 26 June 1995, just a few weeks before the mass slaughter of thousands of Bosnian Muslims in Srebrenica, the Ministers of Foreign Affairs and Defence sent a so-called Assessment Framework (Toetsingskader) to the House of Repre-sentatives (Tweede Kamer) to further the debate in the House on the dispatching of military units on behalf of international operations.1_{This framework was} meant to formulate in a clear manner the way in which the government – in conformity with its constitutional duty (art. 68 of the Constitution) – had in the past cooperated with the House in this field. One of the important starting points concerned the involvement of the Netherlands in out-of-area operations (outside of NATO-territory) in order to contain a crisis. Here it was said that such operations should take place (1) in accordance with the charter of the UN, preferably on the basis of a resolution in the Security Council, and (2) either with a view to peace enforcement outside of the framework of the UN, or in order to avert large-scale and massive violations of elementary human rights in the framework of a humanitarian emergency operation.

6. In conjunction with this and other starting points, the Assessment Framework contained a number of reflections on the political desirability and the practical feasibility of participation in international operations. When it comes to political desirability – the practical feasibility is not a relevant issue in the context of this note – it is, inter alia, clearly stated that the dispatching of military units has to take place on the basis of Dutch interests (including the protection of international peace and security) and/or the advancement of the international legal order. Its advancement is not only at stake in case of operations which affect the sovereignty of countries but also gross violations of human rights, such as genocide, may constitute a reason for military intervention by the international community. However, the dispatching of Dutch military units has to be in accordance with international law and preferably should happen on the basis of a clear mandate of the United Nations or another international organization. This mandate – in the framework of the UN, preferably a resolu-tion in the Security Council – should in general terms formulate the political and military aim of the operation.

7. On the basis of, on the one hand, an interdepartmental evaluation of the military intervention in Kosovo in 1999 and, on the other hand, a report of

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a special commission that evaluated the participation of the Netherlands in peace operations in the last ten years, the government again discussed with the House the political decision-making process with regard to the deployment of military units and in particular the ways in which important components of the Assessment Framework were interpreted and practically applied.

8. This debate was, however, not the only reason why the government adapted the Assessment Framework and sent a revised version in July 2001 to the House.2 The second reason was the report that a panel of experts, under the guidance of UN ambassador Lakhdar Brahimi, published on 21 August 2000 about the ways the execution of peace operations could and should be improved. And the third reason was a change to the most relevant articles (Articles 97 and 100) of the Constitution. The most relevant article in the framework of this note is Article 100. In Article 100 (1) it is stated that the government shall inform the States General in advance if armed forces are to be deployed or made avail-able to enforce or to promote the international legal order. This shall include the provision of humanitarian aid in the event of armed conflict. Article 100 (2) continues by saying that the provisions of paragraph 1 shall not apply if compelling reasons exist to prevent the provision of information in advance; in this event information shall be supplied as soon as possible.

9. With regard to armed humanitarian intervention it was repeated in the revised Assessment Framework 2001 that the dispatching of military units only could take place to enforce or to promote the international legal order, including the prevention or the ending of serious and massive violations of fundamental human rights. In contrast with the 1995 version of the Assessment Framework the revised 2001 version contained a special section on the mandate. Here it is clearly stated that the deployment of Dutch military units has to be in accordance with international law. In case the operation does not take place at the invitation of the related country it has to be based on a clear mandate. This mandate usually originates from the United Nations and in principle is in the form of a resolution in the Security Council, which should formulate the political and military ends of the operation. Furthermore, a distinction has to be made between operations for a specific period of time, as defined by the international organization, and operations which should achieve a specific aim. The mandate should also show whether it concerns an operation in the framework of chapter VI or of chapter VII of the Charter of the UN.

10. A year after the fall of Srebrenica, on 6 September 1996, the Minister of Foreign Affairs and the Minister of Defence announced their intention to instruct the Netherlands Institute for War Documentation (NIWD) to investigate events before, during and after the fall of the town.3_{The report that a research group,}

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chaired by the director of the NIWD, Prof. Dr. Hans Blom, published on 10 April 2002 contained a number of explosive conclusions, not only for the Dutch government but for the United Nations as a whole. A few quotes from the Blom Report may illustrate the nature of these conclusions in relation to the decision-making process in the Netherlands:

– International interventions are rarely so preventive that they can be made before excesses occur. If those excesses do occur, the public debate on them often leads governments to intervene on moral and humanitarian grounds. More in-depth analysis of the background of trouble spots and measures based on such analysis rarely play a major role;

– The decision to become one of the main suppliers of troops for a peace mission moved many at the time. Dutch politics were dominated by the call to intervene on moral grounds. This humanitarian motivation, coupled with the ambition to improve Dutch credibility and prestige in the world, led the Netherlands to offer to dispatch the Air Brigade.

These and other conclusions were the reason for the Kok Cabinet resigning on 16 April 2002.4

11. In the meantime, on 12 October 1999, the Minister of Foreign Affairs had asked – on behalf of the government – the Advisory Council on International Affairs (ACIA) and the Advisory Committee on Issues of Public International Law (ACIPIL) to prepare a common advice on humanitarian intervention. In particular he wanted these high-level advisory bodies to pay attention to Article 39 of chapter VII of the UN Charter, which has the aim to end large-scale human suffering. The reason for this particular question was that experience had shown that the Security Council is not always capable of taking timely effective measures and that in such a situation a country or a group of countries could make an attempt – without authorization by the Security Council and without the permission of the related country – to end these violations of human rights with force or the threat of force. And although such an intervention on political and moral grounds may be justified there is no clear and generally accepted legal basis for it. And the lack of such a basis carries two risks: on the one hand the abuse of the concept of humanitarian intervention for different military operations, and on the other hand the undermining of the position of international law because of the fact that it offers no possibility to intervene in the case of serious violations of generally accepted human rights. Therefore, it is very important to develop such a concept.

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12. The report that the ACIA and the ACIPIL published in 2000 indeed made an effort to elucidate the concept of humanitarian intervention by making a distinction between humanitarian intervention with a mandate of the Security Council and humanitarian intervention without such a mandate.5_{In its} conclu-sions and recommendations they first of all stipulated that in the 1990s, for a number of reasons, an increasing tension manifested itself between, on the one hand, the prohibition of use of force between states and the respect for territorial integrity and, on the other hand, the obligation to enforce and advance human rights. Secondly, those advisory bodies concluded that the Security Council also in the future for political reasons would not be willing or would not be able to intervene with force in a humanitarian emergency situation, but that international law at that moment offered no legal basis for humanitarian intervention and that such a basis was not yet emerging. In other words, one could only acknowledge that, in general, situations exist wherein such serious and large-scale violations of human rights take place, that states feel obliged to intervene with military means. If they do so they have to justify their military intervention in the framework of the United Nations, because in legal terms it still is a violation of the international legal order. Such a violation, however, is only justified when the intervening states can demonstrate that they had to act in order to prevent or to oppose a far graver infringement of that same legal order. If the permanent members of the Security Council are unable to reach agreement in such a situation, the states in question have to look for another legitimation for their intervention. This legitimation could be acquired by taking the question to the UN General Assembly by making use of the procedure that is contained in the Uniting for Peace Resolution 1950.

13. This recommendation means that the ACIA and the ACIPIL in fact accepted – pending the further development of a justification based on international law – that in extreme cases and by way of an “emergency exit” humanitarian interventions are admissible. However, this position presupposes, the ACIA and ACIPIL emphasized, that with a view to the evaluation of such interventions a framework should be developed that contains the minimum conditions that states have to take into account and that, in addition, can structure the delibera-tions in the United Nadelibera-tions with regard to specific instances of intervention. In its opinion such an Assessment Framework could, if strictly observed, also encourage international acceptance of a separate justification for unauthorized humanitarian intervention under international law, in which humanitarian necessity prevails over the law banning the use of force. The ACIA and the ACIPIL finally identified four key questions that need to be answered in

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connection with the Assessment Framework proposed here: which states may carry out a humanitarian intervention, when are states allowed to do so, what norms do the intervening states have to obey, and when and how do they have to end a humanitarian intervention? This Assessment Framework should be considered, in appropriate cases, as a minimum precondition for unauthorized humanitarian intervention.

II.2. The impact of the war in Iraq

14. The Netherlands not only gave political support (politieke steun) to the US-British attack on Iraq in 2003 but was to some extent also involved “in military action in, around and over Iraq prior to and during the invasion”, as the Davids Commission established. It supported the movement of sensitive military equipment on Dutch territory, stationed Patriot rockets in Turkey and contributed – after the invasion – a contingent of 1,100 military personnel to the stabilization and security force in the South of Iraq. Both issues heavily fuelled the political debate in the country with regard to the legal basis and the mandate of missions in which Dutch military units participate.6_{This explains} why after years of discussion it was said in the governmental policy statement of the Balkenende IV Cabinet dated 7 February 2007 that the Netherlands would attune its security policy to the new situation in the world and would focus on peace missions, the fight against terrorism, prevention of conflicts, and reconstruction. This statement was immediately followed by the sentence: an adequate legal mandate is required in case of participation in missions in which Dutch military personnel is deployed; the so-called Assessment Framework con-stitutes the guideline for the decision-making process whereby parliamentary involvement is guaranteed. These few lines got considerable attention during the debate in the Senate on the position of the government concerning Iraq and on the meaning of the words “adequate legal mandate”. In response to this debate the government promised to prepare a note in which these words would be fleshed out in order to further the debate in both Chambers on the position that should be taken in this field.

15. On 22 June 2007 the Ministers of Foreign Affairs and Defence sent the related note to the House.7_{First of all it is stated in this note that the Assessment} Framework 2001 is left completely intact. Secondly it is observed that, although a distinction should be made between the general legal basis for military missions and their mandate, it is self-evident that a mandate has to be founded on that basis. Thirdly it is emphasized that in case of a military operation in which the Dutch military is not involved, the government can only offer political support if

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there is a legal basis for that operation. Fourthly it is recalled that in conformity with the Assessment Framework 2001 the deployment of military units – also in case of the prevention or ending of serious and massive violations of human rights – should be in accordance with international law, i.e. in principle a resolu-tion in the Security Council, and should be based upon a clear mandate. In the wake of these starting points the note continues by portraying the two generally accepted legal bases for interstate use of force: on the one hand individual and collective self-defence (art. 51 of the UN Charter) and on the other hand with the permission/authorization of the Security Council.8

16. In conjunction with this exposé, two issues are highlighted. The first one is that one cannot deduce from resolutions in the Security Council, which do not contain an explicit authorization to use force, an implicit authorization to do so. The second issue relates to the upcoming doctrine of Responsibility to Protect (R2P). Here it is observed – referring to the miserable situation in Darfur at the time – that a distinction has to be made between two situations. The first one concerns a situation in which the Security Council – because the right to veto has been invoked or the required majority of votes has not been attained – is not able to take decisions and the related state is not willing to execute its decisions. The second one relates to a situation in which no unanimity can be reached on a resolution in the Security Council but the international community is of the opinion that military intervention is legitimate/lawful. An example of the latter situation is a threatening humanitarian emergency situation in which the Security Council could not fulfil the principle of Responsibility to Protect. 17. In the wake of this example, the note discusses other legal bases for exceptions

to the prohibition to use force. In the first order it explains the third generally accepted legal basis for military intervention: an invitation by the country in question. In the second order – referring to what happened in Kosovo in 1999 – it elaborates upon the report of the ACIA and ACIPIL from 2000 with regard to humanitarian intervention that has already been discussed in this note, and draws the following conclusion from it: the government endorses the judgment of both bodies that in a humanitarian emergency situation a military intervention can be justified on moral and political grounds, although a clear legal basis is lacking; the lack of such a basis does not alter the fact that humanitarian intervention in extreme cases and under strict conditions by way of an emergency exit can be permissible. In conjunction with this conclusion the government emphasizes that in such situations an ultimate effort should have been made to achieve unanimity in the Security Council on the necessity